Abortions of the Parental Prerogatives of Unwed Natural Fathers: Deterring Lost Paternity
Parness, Jeffrey A.
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A natural father's biological relationship with his child is often insufficient by itself to trigger the father's parental rights recognized within the "substantial protection" of the Due Process Clause of the Fourteenth Amendment or within comparable protections afforded by other federal or state laws. Rather, there is often required "an actual relationship" involving the assumption of parental responsibility, at least where there is no legal presumption of paternity or a certain affirmative act by an alleged natural father, like acknowledging paternity voluntarily. Determinations of actual relationships are frequently necessary and quite difficult where the natural father is not married to the natural mother. Typically, an "actual relationship" arises for an unwed natural father where he "demonstrates a full commitment to the responsibility for the child's future." Yet at times, even an actual relationship may be insufficient to trigger parental rights for an unwed natural father, as when the natural mother is married to another man. By contrast, federal and state law protections of parental rights generally are accorded automatically to unwed natural mothers who conceive, carry, and bear. The U.S. Supreme Court has justified the differing treatment of an unwed natural father and an unwed natural mother, in part, because the "parental relationship is clear" for the mother. Courts generally accord federal and state parental rights protections automatically to certain men, including some who are not natural fathers. Natural fathers who were married to the natural mothers at the time of conception, pregnancy, and/or birth usually receive parental rights. Comparable parental rights for men who have not established actual relationships with their children or have not taken certain affirmative acts also arise automatically for men who are not natural fathers, as long as they were married to the natural mothers at some relevant time prior to or at the time of birth. Unlike married natural fathers, however, these men may only be accorded presumptive parental rights, with the presumption being rebuttable. Thus, under federal substantive due process an unwed natural father may have "an opportunity that no other male possesses to develop a relationship with his offspring." While American lawmakers may not negate, and in fact must safeguard to some extent, the opportunity of certain unwed fathers to step up to these "parental prerogatives," they may also expand the opportunities for unwed natural fathers to achieve parental rights. In settings where the federal constitution and supplementary federal and state laws afford unwed natural fathers opportunities to step up to parenthood, often there is little guidance on which men and how men may successfully come forward. Particularly difficult issues arise where there exist competing interests, including the parental prerogatives of the natural mothers, the best interest of children, extant marital unions, and fiscal concerns. Determinations as to the appropriate levels of governmental safeguarding of the parenthood opportunities of unwed natural fathers are especially difficult where there fathers may be unaware of their newborn children through no fault of their own; where they would likely step forward if they did know; and, where more overall good than harm would likely, or at least might, arise if they did step up. The abortion of such parenthood opportunities due to inadequate governmental safeguards receives attention here. To date, there has been little commentary, much confusion, and conflicting laws. Focusing on governmental safeguarding of the parenthood opportunities of unwed natural fathers requires inquiries into the acts of natural mothers. Natural mothers can thwart unwed natural fathers eligible to step up and thereby acquire parental prerogatives. Laws can help reduce lost opportunities for male parenthood by regulating the conduct of natural mothers. Laws can operate both while the opportunities for male parenthood remain open and after such opportunities have passed. Thus, laws can prompt prevention as well as compensation and deterrence. Prevention can be built, for example, into existing laws on birth certificates and putative father registries. Past conduct can be addressed, for example, through new or expanded civil claims involving fraud or infliction of emotional distress. In focusing on the inadequate governmental safeguarding of the parenthood opportunities of unwed natural fathers, this article initially explores U.S. Supreme Court decisions and supplementary federal and state laws. Part II demonstrates how high court decisions leave unresolved many important issues that other contemporary laws then fail to address, or to address well. It suggests that confusion over the differences between federal substantive and procedural due process rights may explain certain failings. Part Ill briefly reviews key issues involving eligibility and techniques for stepping up to paternity under law that remain open under federal precedents. Finally, Part IV more fully reviews the adequacy of governmental safeguards of the federal due process parental interests of unwed natural fathers, including in settings in which women easily can, and sometimes do, abort male parental prerogatives. It suggest reforms that provide clearer guidance, that encourage and permit more unwed natural fathers to step up to parenthood, and that provide remedies to those natural fathers whose parenthood opportunities under law have been wrongfully aborted. The article posits that certain reforms are, in fact, required by federal constitutional procedural due process principles operating both before and after possible male parental prerogatives have been aborted.
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